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T PETITIONER CHAPTER ONE FOUNDATION LIMITED·~ 2No PETITIONER
AND
CORAM: Chibomba, PC, Sitali, Mulenga, Mulembe, Mulonda, Munalula and Musaluke, JCC.
On 25th November, 2019 and on 29111 November, 2019.
For the 1st Petitioner: Mr. J. Chimankhata and Mr. L. Mwamba both of Simeza Sangwa and Associates.
For the 2"d Petitioner: Ms. L. C. Kasonde and Mr. J. Kalala both of L. C. K. Chambers.
For the Respondent: Mr. L. Kalaluka, S.C., Attorney General, Mr. A. Mwansa, S.C., Solicitor General, Mr. F. K. Mwale, Principal State Advocate, Mr. S. Mujuda, Principal State Advocate, Ms. J. Mazulanyika, Assistant Senior State Advocate, Mr. J. Sianyabo, State Advocate, Ms. N. K Chongo, State Advocate.
ABRIDGED JUDGMENT
Chibomba, PC, delivered the judgment of the Court.
Due the urgency of this matter, this is an abridged Judgment. The
detailed Judgment will come in due course.
By Petition filed on 1ih August, 2019, under Cause No.
2019/CCZ/0013, the 1st Petitioner, the Law Association of Zambia (LAZ)
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prays for the following reliefs from the Respondent, the Attorney General
of the Republic of Zambia:-
"(a) a declaration that the Respondents' decision to the extent to
which it seeks to amend the Constitution in the manner set in the
Constitution of Zambia (Amendment) Bill No. 10 of 2019, is illegal
because it contravenes Articles 1 (2), 8, 9, 61, 90, 91, 92 and 79 of
the Constitution;
(b) an order (of Certiorari) that that this Petition be allowed and that
the Constitution of Zambia (Amendment) Bill No. 10 of 2019,
which evidences the Respondents' decision to amend the
Constitution in the manner provided therein be removed forthwith
into the Constitutional Court for purposes of quashing:
(c) Any other remedy the Court may consider just in order to defend
the Constitution and resist or prevent its overthrow, suspension
or illegal abrogation; and
(d) The costs of and occasioned by the Petition be borne by the
Respondents."
The Petition was filed pursuant to Articles 128 (3), 1 (2), 8, 9,
61,90, 91, 92 (2) (1 ), 177 (5) (B) and 79 (2) of the Constitution
(Amendment) Act No. 2 of 2016 and Section 8 (3) of the Constitutional
Court Act and Order 4 (1) of the Constitutional Court Rules, 2016. The
Petition was filed together with an Affidavit Verifying the Petition and
skeleton arguments and a witness statement.
In opposing the 1st Petitioner's Petition, the Respondent, on 81 h
I October, 2019 filed an Answer and affidavit in opposition and skeleton
arguments.
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On 4th September, 2019, the 2nd Petitioner, Chapter One
Foundation Limited, filed an amended Petition under Cause No.
2019/CCZ/0014 in which it is claiming the following reliefs against the
same Respondent, the Attorney General :-
"1. The Court makes a declaration that all institutions that are involved in the process of enacting legislation including National Assembly and Parliament are bound by the Constitution to apply the National Values and Principles in the enactment process;
2. The court makes declaration that Parliament cannot enact legislation that contravenes Article 61 of the Constitution or Articles 8 and 9 of the Constitution and therefore, can only enact legislatio,n that protects the Constitution and promote democratic governance in Zambia;
3. The decisions, omissions and the actions by the Government of the Re,public of Zambia in drafting and tabling the Constitution of Zambia (amended) Bill No. 10 of 2019 which weakens the Constitution and does not promote democratic governance in Zambia be declared unconstitutional and contra,ry to the provisions of Article, 61 of the Zambian Constitution and therefore illegal;
4. That the co·urt make a declaration that the President, Minister of Justice and Attorney General acted illegally by initiating legislation that did not comply with the National Values and Principles as provided in the Constitution of Zambia;
5. That the court order that the Minister of Justice to withdraw from the National Assembly the Constitution of Zambia (Amended) Bill No. 10 of 2019 from the National Assembly as the process of its e,nactment and the proposals contained within it do not comply with the National Values and Principles and the provisions of the Constitution of Zambia;
6. That the court make a declaratory order that the Government of Zambia cannot propose or enact legislation including propose the enactment or amend the Constitution of Zambia in a manner that contravenes the National Values and Principles as set out in the Constitution of Zambia;
7. That the court make a declaratory order that the National Assembly of Zambia cannot exercise legislative authority in manner that does not protect the Constitution or promote democratic governance in the Republic of Zambia;
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8. The court make a declaration that Article 79(1) of the Constitution must be interpreted in a manner that is consistent with the entire Constitution;
9. The court make declaratory order that the Government of Zambia cannot fundamentally alter the nature of the Constitution contrary to the will expressed by the people of Zambia without duly consulting the people of Zambia; and
10. An Order that costs of and occasioned by the Petition be borne by the parties."
The Petition was filed pursuant to Articles 128 (1) (b), 128 (3) (b),
1(3), 8 (c), 8 (e), 9, 61 79 and 287of the Constitution (Amendment) Act
No. 2 of 2016. The Petition was also filed together with the Affidavit
Verifying the Petition and skeleton arguments.
The Respondent, on 1 J1h October, 2019, filed an answer and
affidavit in opposition and Skeleton arguments.
On 4th October, 2019, the parties filed a consent order
consolidating the two Petitions so that they could be heard at the same
time. The Law Association of Zambia was to be the 1st Petitioner while
the Chapter One Foundation Limited is the 2nd Petitioner.
The historical background of this matter, which was common
cause to the parties in the Petition, is that following the amendment of
the Constitution of Zambia by Constitution (Amendment) Act No. 2. of
2016 which came into force on 5th January, 2016, it was observed that
there were some lacunae which required to be addressed. The Ministry
of Justice invited members of the public, associations and institutions to
make submissions by identifying provisions that required refinement.
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Among those who responded to this invitation is the 1st Petitioner, The
Law Association of Zambia. The Ministry collated the submissions
received from the public and other institutions and these were
considered by the Secretaries General of Political Parties who met in
Siavonga and came up with the Siavonga Resolutions of 1 ih June,
2018.
On gth November, 2019 the National Dialogue (Constitution,
Electoral Process, Public Order and Political Parties) Act, 2019 (the Act),
was enacted. The Preamble to the Act reads: -
"An Act to facilitate the implementation of the Siavonga resolutions of political parties relating to constitutional and institutional reforms, separation of powers and judicial independence, tolerance, freedom of assembly and civility in politics and electoral reforms; provide for a national dialogue process to facilitate the Constitution refinement process and regulation of political parties, public order and electoral process reforms; establish the National Dialogue Forum and provide for its functions; and provide for matters connected with, or incidental to, the foregoing."
Section 4 (1) and (3) of the Act provided for the establishment and
the functions and powers of the National Dialogue Forum (NDF) and
provides as follows: -
"4 (1 ): There is established the National Dialogue Forum which, subject to the Constitution, is a forum for the implementation and enhancement of the Siavonga resolutions for proposals to -
(a) alter the Constitution, based on the draft amendments proposed to the Constitution based on submissions from the stakeholders specified in the Schedule, following the enactment of the Constitution of Zambia (Amendment) Act, 2016, and additional submissions from the church; and
(b) reform the law on the electoral process, public order and regulation of political parties based on submissions from various stakeholders.
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"(3) The Forum shall, in the performance of the functions or exercise of the powers conferred by this Act -
(a) be accountable to the people of Zambia;
(b) Recognise the importance of confidence building, engendering trust and developing a national consensus for the review process;
(c) Ensure, through the observance of the principles referred to in Section 3, that the review process -
(i) provides the members with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution, the Electoral Process Act, 20116 and the Public Order Act and provide for the enactment of the Political Parties Bill, 2019, as contained in their submissions and appropriate technical or expert reports considered by the Forum;
(ii) is, subject to this Act, conducted in an open manner; and
(iii) is guided by the respect for the universal principles of human rights, gender equality and democracy; and
(d) ensure that the final outcome of the review process faithfully reflects the wishes of the people of Zambia."
Section 5 of the Act lists the composition of the Forum while the
Schedule under Section 4 (1) lists individuals, institutions and
organizations that made submissions to the Constitution Refinement
Process, Public Order Act and Political Parties Bill. The draft
Constitution Amendment Bill was initiated by the Republican President
and signed by the Attorney General, the Respondent in this matter and
then it was taken to the National Assembly which caused Bill No. 10 to
be published in the Gazette. Thereafter, Bill No. 10 was tabled for first
Reading in the National Assembly. The Bill was then referred to the
Select Committee for consideration. The Select Committee of the
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National Assembly invited the public and certain Organisations and
Associations to make their submissions on the Bill for consideration and
the 1st Petitioner was invited but did not however attend before the
Committee on ground that on the same day that it received the invitation,
it had tiled its Petition before this court.
We have considered the Prayers in the respective Petitions
together with the contents of the affidavits verifying the Petitions and the
arguments advanced in the respective skeleton arguments by the
Petitioners and the authorities relied upon. We have also considered the
Answers and affidavits in opposition to the two Petitions and the
authorities cited. We have also considered the evidence adduced by the
Petitioners' respective witnesses and the oral submissions by the
learned Counsel for the Parties.
In their prayers, the 1st and 2nd Petitioners have sought some
declarations based on the provisions of the Constitution, in particular,
Articles 8, 9 and 61 on national values and principles as well as how the
exercise of legislative authority of the Republic shall be applied. We
wish to reiterate that we are alive to and in agreement with, the fact that
Article 8 outlines the national values and principles, and Article 9
provides in mandatory terms that the national values and principles shall
apply to the enactment and interpretation of the Constitution and the law;
among others. This position is further enhanced by Article 1 (3) which
provides that the Constitution shall bind all persons in Zambia as well as
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the state organs and institutions. Further1 the principles guiding the
exercise of legislative authority by Parliament are outlined in Article 61
as being the protection of the Constitution and the promotion of the
democratic governance of the country. This requirement is settled, as
this Court has said in several of its decisions that it is enjoined to apply
these national values and principles in interpreting the Constitution and
the law.
From the Petitions and submissions by the parties, the central
question that seems to be raised in the two petitions 1s whether
Constitution (Amendment) Bill Number 10 should be moved into this
Court for the purpose of quashing it on grounds that the Republican
President's, the Attorney General's and the National Assembly's
decisions to initiate, sign and tabling the Bill it in the National Assembly
contravened Articles 1 (2)1 8, 9, 61, 79, 90, 91, and 92 as the process
through which it was birthed did not take into account the national values
and principles; was not consultative or inclusive and touches the basic
structure of the Constitution.
As regards the question, whether the Constitutional Court has
jurisdiction to determine a petition which challenges a bill, the learned
Attorney General, in arguing this issue, submitted that the Court does
not have jurisdiction to hear a case that seeks to challenge proposed
legislation. The reason given was that since a bill is proposed legislation
which has not yet been enacted into law, the same cannot be
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challenged. The second argument in support of this position was that
Parliament enjoys exclusive cognizance over its internal proceedings.
Hence, the Courts cannot interfere with the internal affairs of Parliament
which it enjoys or has the Constitutional mandate or authority to
legislate. As authority, the following cases were cited for our
consideration:
Appeal had occasion to pronounce itself on the
propriety of challenging proposed amendments to the
Constitution.
the Legislative Assembly of West Bangal & Others
in which some parties sought to restrain the Chief
Minister from pursuing a resolution approving the union
of two States as well as to restrain the Union of India
from bringing or initiating any bill or legislation in
parliament for purposes of uniting the two States; and
3. Re Nalumino Mundia where the High Court was
moved to quash the decision of the Chairman of the
Standing Orders Committee to suspend a Member of
Parliament from the National Assembly. It was held
that the court did not have the power to interfere with
the exclusive jurisdiction of the National Assembly in
the conduct of its internal proceedings.
In response, the learned Counsel for the 1st Petitioner argued that
what their Petition challenges is that the Respondent, by their decisions
of initiating the Bill by the Republican President, signing the Bill by the
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Respondent and publishing it in the government gazette and tabling it for
consideration by the National Assembly, contravened Articles 1 (2), 8, 9,
61, 79, 90, 91, and 92 of the Constitution as they did not take into
account the national values and principles; which according to Counsel
are democracy; constitutionalism; social justice; rule of law; dignity;
leadership and integrity. And hence those decisions were not made for
the Zambian people's well-being and benefit, and do not uphold and
safeguard the Constitution. Further, that what the 1st Petitioner is
challenging is not the contents of Bill No. 10 but the decisions taken by
the Respondent as outlined above. Hence, this Court has jurisdiction
under Article 128 (3) of the Constitution.
The 2nd Petitioner's response was that the national values and
Principles under Article 8 of the Constitution were not applied in the
manner envisaged by Article 9 of the Constitution in coming up with Bill
No. 10. And that the initiation, approval, signing and considering of Bill
No. 10 contravened Article 61 of the Constitution which provides for the
principles of legislative authority which states that the legislative
authority of the Republic derives from the people of Zambia and shall be
exercised in a manner that protects the Constitution and promotes the
democratic governance of the Republic. Further, that the Court can
determine whether the decision to pass Bill No. 10 complied with Article
1 of the Constitution which provides for the supremacy of the
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principles invalidates any decision, action or measure taken in the
legislative process. As authority, the Kenyan case of Speaker of
National Assembly v Attorney General and 3 Others was cited.
In response to the decision in the Nkumbula case, relied upon by
the Respondent, Counsel for the 2nd Petitioner contended that the above
cited case does not apply in this case because under the Constitutional
regime currently in place, national values and principles have been
enshrined in the current Constitution, while the Constitutional regime
under which that case was decided, no national values and principles
had been embedded in the then Constitution. Therefore, that this Court
is now enjoined to, in interpreting the Constitution, apply the national
values and principles which did not exist at the time of the Nkumbula
decision.
We have considered the above submissions. The starting point is
Article 128 which sets out the jurisdiction of this Court. Article 128
provides as follows:
"128. (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear-
(a) a matter relating to the inte·rpretation of this Constitution;
(b) a matter relating to a violation or contravention of this Constitution;
(c) a matter relating to the President, Vice-President or an election of a President;
(d) appeals relating to election of Members of Parliament and councillors; and
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(e) whether or not a matter falls within the jurisdiction of the Constitutional Court.
(2) Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court.
(3) Subject to Article 28, a person who alleges that­
(a) an Act of Parliament or statutory instrument;
(b) an action, measure or decision taken under law; or
(c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress.
(4) A decision of the Constitutional Court is not appealable to the Supreme Court."
It is clear from the provision of Article 128 (3) (b) that the
Constitutional Court has jurisdiction to hear a matter concerning an
allegation that an action, measure or decision taken under the law
contravenes the Constitution. However, the question is, does the Court
have jurisdiction to hear a matter that alleges that a bill contravenes the
Constitution as alleged in this case by the 2nd Petitioner?
Ms. Kasonde's position in this regard was that where the allegation
is that the Bill touches on the basic structure or violates the national
values and principles, then the Court has jurisdiction to grant the
remedies sought.
As can be seen from the provisions of Article 128, the
Constitutional Court has very wide jurisdiction. But however, although
this jurisdiction is extensive, it is still limited by the Constitution itself in
Article 128. Its jurisdiction is subject to Article 28. Therefore. as a
creature of the Constitution, the Constitutional Court can only exercise
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the jurisdiction and power given to it by the Constitution. Therefore, the
question that follows is whether the Constitutional Court has jurisdiction
to hear and determine an allegation that a bill proposed to amend the
Constitution contravenes any provision of the Constitution as has been
argued by Ms. Kasonde. This has required us to holistically look at the
entire provision of Article 128 of the Constitution vis-a-viz the jurisdiction
of the Court. We have pronounced ourselves in several of our decisions
on the canons on interpretation of the Constitution as amended including
in the case of Steven Katuka and Law Association of Zambia v The
Attorney General and Ngosa Simbyakula and 63 Others where we
stated that Article 267 (1) enjoins us to interpret the Constitution in
accordance with the Bill of Rights and in a manner that promotes its
purposes, values and principles. This entails that this Court must have in
mind the broad objects and values that underlie any particular subject
matter. We explained in that case that this was premised on the principle
that words or provisions in the Constitution or statute must not be read in
isolation. And that the purposive approach entails adopting a
construction or interpretation that promotes the general legislative
purpose which requires the court to ascertain the meaning and purpose
of the provision having regard to the context and historical origins, where
necessary. Also in Milford Maambo and Others v The People, we
stated that all the relevant provisions bearing on the subject for
interpretation should be considered together as a whole in order to give
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effect to the objective of the Constitution. After holistically considering
Article 128t our finding is that none of the provisions in Article 128
mention a bill.
Ms. Kasonde has also argued that under Article 1, this Court is the
last in the line of defence of the Constitution. As much as we agree with
this, there is nothing in Article 128 or any other provision in the
Constitution that gives this Court jurisdiction to question the contents of
the bill or to declare it unconstitutional. Our position is further buttressed
by the fact that the question of giving the Constitutional Court jurisdiction
to hear a matter that alleges that a bill contravenes the Constitution was
considered by the Technical Committee on drafting the Zambian
Constitution but rejected. In this respect we refer to Article 131 at page
361 of the Report of the Technical Committee dated 30th December,
2013 which reads as follows:-
"Article 131: Challenge of Bill and Reference to Constitutional Court Recommendations in the first Draft Constitution.
The following provisions were recommended in the First Draft Constitution:
131 (1): Thirty or more Members of Parliament or any person, with leave of the Constitutional Court, may challenge a bill, for its constitutionality, within three days after the final reading of the Bill in the National Assembly.
(2) Where the Constitutional Court considers that a challenge of a Bill, under this Article, is frivolous or vexatious, the Constitutional Court shall not decide further on the question as to whether the Bill is, or will be, inconsistent with this Constitution but shall dismiss the action.
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(3) Where the Constitutional Court determines that any provision of a Bill is, or will be, inconsistent with any provision of this Constitution, the Constitutional Court shall declare the provision unconstitutional and inform the Speaker and the President.
(4) Clauses (1 ), (2), and (3) shall not apply to a Money Bill or a Bill containing only proposals for amending this Constitution or the Constitution of Zambia Act.
(5) The Standing Orders of the National Assembly shall provide for the procedure to be followed by Members of Parliament who intend to challenge a Bill."
Deliberation of the Technical Committee on Article 131
The Committee considered the resolutions of the District Consultative Fora, Provincial, Sector Groups and National conventions.
The Committee observed that since a 'Bill' was not yet law, there was no need to provide for it to be challenged. The Committee, therefore, agreed to delete the Article."
We have considered the prayers of the 2nd Petitioner. The 3rd, 4t\
5th and 5th prayers would require us to delve into Bill No. 10 which we
cannot do because we do not have jurisdiction as already stated. The 1st
and 2nd prayers are already provided for in the Constitution in Articles 8,
9 and 61. Similarly, Article 9 and 61 respond to the 2nd Petitioner's th
prayer, while with respect to the ath prayer, the power to amend the
Constitution is given to the legislature in accordance with Article 79(1) of
the Constitution. In the 9th prayer, the 2nd Petitioner prays for a
declaratory order that the Government of Zambia cannot fundamentally
alter the Constitution without consulting the people of Zambia.
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Therefore, in as much as we sympathise with the position the 2nd
Petitioner finds itself in, that remedy is not available because this Court
does not have jurisdiction. We also take note that with respect to an Act
of Parliament or Statutory Instrument, specific provision was made by
the legislature to give jurisdiction to hear and determine a matter where
the allegation is that the Act of Parliament or Statutory Instrument
contravenes the Constitution. To this effect, this court has in fact
declared certain clauses of Acts of Parliament unconstitutional. (See
Godfrey Malembeka (suing as Executive Director of Prisons Care &
Counseling Association) v The Attorney General & The Electoral
Commission of Zambia CCZ Selected Judgment No. 34 of 2017 and
Webby Mulubisha v The Attorney General.
Coming to the 1st Petitioner's case, its first prayer is for a
declaration that the President's, Respondent's and National Assembly's
decision to the extent that it seeks to amend the Constitution in the
manner set out in Bill No. 10, is illegal on grounds that it contravenes
Articles 1 (2), 8, 9, 61, 79, 90, 91 and 92 of the Constitution. The 1st
Petitioner in its oral submissions argued that the decisions by the
President, the Attorney General and the National Assembly to amend
the Constitution, are evidenced by Bill No. 10.
From the above, it is clear that what the 1st Petitioner is asking us
to do is to delve into Bill No. 10. The 1st Petitioner's submission that
what they are challenging is not the contents of the Bill but the decisions,
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is at variance with their own pleadings and evidence which requires this
Court to delve into the contents of the Bill itself. We have already stated
that Article 128 (3) (b) gives this Court jurisdiction. However, this
jurisdiction does not extend to questioning the contents of a bill. We
have considered the prayers of the 1st Petitioner and we are unable to
grant them without us delving into the Bill and its contents. It is a
roundabout way of asking us to delve into the Bill which we cannot do
because we do not have jurisdiction. The prayer is therefore declined.
The Petitions are unmeritorious and are therefore dismissed.
Each party shall bear its own costs.
H. Chibomba PRESIDENT,
........................................................... M. M. Munalula
CONSTITUTIONAL COURT JUDGE
~ .......................................................... M. S. Mulenga
CONSTITUTIONAL COURT JUDGE